A federal appeals court Thursday struck down a Riverside judge's ruling last year branding "Don't Ask, Don't Tell," the ban on gays serving in the military, as unconstitutional.
The unanimous ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals could frustrate efforts by the 14,000-plus discharged gay service members to be reinstated or compensated for lost wages and promotions.
In a jointly written ruling underscoring their unity on the issues, the judges said that the recently completed repeal of "Don't Ask, Don't Tell" resolved the conflict that prompted the Log Cabin Republicans gay-rights group to sue the Pentagon for discriminating against gay and lesbian service members.
"The Supreme Court and our court have repeatedly held that a case is moot when the challenged statute is repealed, expires or is amended to remove the challenged language," the judges said, pointing out that the 1993 statute requiring discharge of any soldier or sailor who was openly gay was repealed by an act of Congress that took effect Sept. 20.
The court also rejected the Log Cabin Republicans' argument that dismissing the case as moot would do nothing to deter Congress from reenacting a similar ban.
"We cannot say with virtual certainty that the Congress that passed the Repeal Act — or a future Congress whose composition, agenda and circumstances we cannot know — will reenact 'Don't Ask, Don't Tell,'" the judges said. "We can only speculate, and our speculation cannot breathe life into this case."
Log Cabin Republicans' attorney Dan Woods had argued before the panel Sept. 1 that upholding the ruling by U.S. District Judge Virginia A. Phillips as precedent was still necessary, despite the statute's repeal, to redress the economic and professional damage inflicted on those discharged over the last 18 years.
"We are, of course, disappointed by today's ruling, but we will continue to fight on for the constitutional rights of all people impacted by 'Don't Ask, Don't Tell,'" Woods said. "This is an important issue for all Americans, and we anticipate seeking rehearing before the full 9th Circuit."
Woods was referring to the right of litigation parties to ask for an 11-judge panel to take a fresh look at an issue of particular importance. The 9th Circuit, which handles as many as 16,000 cases a year, typically grants fewer than two dozen such "en banc" rehearings.
Mike Almy, a Washington-area defense contractor who was discharged from the Air Force in 2006 after colleagues in Iraq discovered emails disclosing his sexual orientation, said the ruling Thursday was a setback for those trying to get reinstated but that it was just one of many hurdles. The services are drawing down deployments in Iraq and Afghanistan, and retention rates among active duty members are high because of the bad economy, Almy said.
"A lot of people think it's a moot point because we've already had repeal," he said. "Still, I'm disappointed that the 'unconstitutional' ruling has been overturned. We were hoping it would stand as a judgment."
R. Clarke Cooper, executive director of the Log Cabin Republicans, said President Obama "should be ashamed" for pursuing the undoing of an important precedent on civil rights.
"This decision by the 9th Circuit denies more than 14,000 discharged gay and lesbian service members an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of service members' rights," Cooper said. "The court can vacate this ruling, but that does not change the fact that 'Don't Ask, Don't Tell' was unconstitutional."
Woods had also argued that the policy unfairly deprived gay service members of benefits after their discharge, such as eligibility for GI Bill educational aid and medical and social services available to other veterans. The panel said the missed benefits were insufficient reason to keep Phillips' ruling on the books.
The most senior member of the 9th Circuit panel, Judge Diarmuid F. O'Scannlain, added a special concurring opinion to note that even if "Don't Ask, Don't Tell" hadn't been repealed by Congress, he might have been inclined to reverse Phillips' ruling.
"Congress could have rationally concluded that [the policy] served the legitimate interests of military capability and success," said O'Scannlain, an appointee of President Reagan who is one of the court's most conservative jurists.
A spokesman for the Justice Department, which defended the policy in Phillips' courtroom and on appeal, did not respond to a request for comment.